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Ripples have recently been caused by the a section of the Kenyan government seeking a deferral of the process of the International Criminal Court (ICC) – that has cited 6 Kenyans for alleged crimes against humanity (dating from the 2007/08 post-election violence). Similarly, a statement attributed to President Al Bashir of Sudan to the effect that the ICC arrest warrant against him should be lifted following the referendum in Southern Sudan raises interesting questions. I will briefly consider the law and politics of the deferral process as well as possible outcomes of the process, including the implications for the ICC.

On 27 August, President Bashir attended Kenya’s celebrations for the promulgation of the new constitution. For the Pre-Trial Chamber of the ICC this was a reason to take a “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya” (http://www.icc-cpi.int/iccdocs/doc/doc930979.pdf). The US, EU and several human rights organisations have condemned Kenya for welcoming a fugitive from international justice. They may have valid political and human rights arguments for their position, just like Kenya has political reasons for inviting the President of its biggest neighbour. ICC judges, however, may take only those decisions for which the ICC Statute provides a legal basis. This blog has already pointed out that it is questionable whether the ICC judges were allowed to circulate an arrest warrant for a President of a non-state party, whose immunity had not been lifted by the Security Council, to ICC States Parties (see the earlier discussion on this blog). However, it is even more questionable whether the ICC judges had a legal basis for this “Decision informing the United Nations Security Council and the Assembly of the States Parties […]

If the implications were not so seriously fatal one would not begrudge the Argentinean bruiser and striker of the ICC team Luis Moreno-Ocampo aka ‘Ocambo’ to his adoring fans to feel the elation as if he had won the World Cup after the ICC’s Pre Trial Chamber I quashed on 12 July its original ruling of March 2009 not to issue a warrant for genocide in Darfur against President al Bashir but to issue after all a warrant for three counts of alleged genocide. Ocampo won the ultimate price, the indictment of a head of state and government in office for genocide, the modern equivalent of being outlawed and wanted ‘dead or alive’, after only on 9 July ‘Ocambo’ had been booked by the referee and his team had concede a goal after judges at the ICC suspended the trial of the DRC warlord Thomas Lubanga because “the prosecutor has elected to act unilaterally in the present circumstances and he declines to be ‘checked’ by the (trial) chamber,” according to the judges. They added that in these overall circumstances the court had to stay the proceedings of Ocampo’s first and so far only trial he brought to court since he […]

This morning I learned from the Sudan Tribune that the African Union has agreed to establish a liaison office for the African Union in Addis Ababa. But I also read on the newswires that the selfsame Chairman of the AU Jean Ping has condemned the ICC decision to indict President Omar al-Bashir for 3 counts of genocide. Can you help me to understand the AU position on the ICC? Admin adds: The two AU statements are available here: On the Chairperson’s “readiness to explore the possibility of establishing an ICC Liaison Office in Addis Ababa”: Presse CommuniqueICC Bilateral 16-07-10 On the AU’s concern over the genocide decision: communique concern over decision ICC Eng

The necessity of transitional justice in Kenya and the merits of certain institutional mechanisms in particular have been vigorously debated in this forum, as well as within the country itself. In both of these contexts, the perspectives of victims of past violence have received only modest attention.

The long-running debate about whether seeking justice for grave international crimes interferes with prospects for peace has intensified as the possibility of national leaders being brought to trial for human rights violations becomes more likely. The International Criminal Court (ICC), which is mandated to investigate and prosecute war crimes, crimes against humanity, and genocide, began operations in 2003 and has already issued its first arrest warrant for a sitting head of state—Sudan’s President Omar al-Bashir.

At a meeting with Africanist scholars in London in 2007, Luis Moreno-Ocampo faced tough questioning over why the ICC had decided to pursue only the Lord’s Resistance Army (LRA) and ignore the Ugandan government’s alleged war crimes and crimes against humanity, particularly its devastating policy of mass forced displacement and internment. Finally, his patience apparently having run out, Ocampo interrupted one of his most insistent questioners and, pointing an accusatory finger, burst out: “If you want to support the LRA, fine! But you should know they are a criminal organization.” This type of response—ad hominem attacks on those who question his actions—appears to be part of a wider pattern of behavior on the part of the Prosecutor, charted most damningly by Alex de Waal and Julie Flint, and has done much to undermine the legitimacy of the ICC. This has led some ICC supporters to maintain that the Court’s problems will be greatly ameliorated once a new Chief Prosecutor takes the reins. As much as I agree that Ocampo represents a major problem for the ICC, I also believe that focusing on his personal failings obscures the deeper, structural problems with the Court as it is constituted. These problems will […]

On 18 February 2010, the International Criminal Court’s (ICC) Pre-Trial Chamber II issued a Decision Requesting Clarification and Additional Information in the Situation in the Republic of Kenya. Paragraph 12 states: “the Chamber notes that to meet the requirements of a crime against humanity under the Statute, the acts committed must, inter alia, be carried out ‘pursuant to or in furtherance of a State or organizational policy’ within the meaning of article 7(2)(a) of the Statute”. There is an ambiguity in article 7 of the ICC’s Statute that is glossed over by the Pre-Trial Chamber II. Article 7(1) states: For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against a population… And then 7(2) states: For the purpose of paragraph 1: (a) “Attack directed against a population” means a course of conduct involving the multiple commissions of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such an attack; The ambiguity concerns whether the State policy requirement means the same thing for both the condition of “widespreadness” and for […]

On 26 November 2009, the International Criminal Court (ICC) Prosecutor, Luis Moreno-Ocampo, requested permission from Pre-Trial Chamber II to conduct formal investigations in Kenya, the first time he has sought to use his proprio motu powers to initiate an investigation. When the Pre-Trial Chamber reconvenes this week to consider the Prosecutor’s request to conduct formal investigations in Kenya, it will have the opportunity to clarify a number of contentious issues of international criminal law, including the principle of complementarity, the gravity threshold, the meaning of “interests of justice” and the definition of “crimes against humanity”. The Pre-Trial Chamber’s forthcoming decision is likely to be one of the most significant in the Court’s short history. After providing a brief background on the conflict in Kenya and describing the applicable procedure from the Rome Statute, this essay considers some of the issues likely to be occupying the minds of the three judges of the Pre-Trial Chamber. Background Following the disputed presidential and parliamentary elections in Kenya in 2007, the country experienced two months of brutal violence. According to the Commission of Inquiry on Post Election Violence (Waki Commission), 1,113 people were killed, many hundreds were raped, and 650,000 were left homeless. On […]

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